CLAUSE 8A – NEWEY PLANNING PROPOSAL

FILE: T5-17 AOP REFERENCE: 4.4.3 ATTACHMENT: YES

(UNDER SEPARATE COVER)

AUTHOR: Director of Planning & Environmental Services, Garry Ryman

Purpose

The purpose of this report is for Council:

i. To consider the submissions received following exhibition and consultation in

respect of Planning Proposal PP_2018_COBAR_001_00_Additional permitted

use for Newey Reserve, Cobar (Lot 25 in DP837494).

ii. To determine whether to request the Department of Planning and Environment to

amend the Cobar Local Environmental Plan 2012 in accordance with the

Planning Proposal prepared by Eco Logical Australia Pty Ltd dated June 2018.

Background

Council at its Ordinary Meeting held on 28 June 2018 resolved:

1. “That Council authorises the Director of Planning and Environmental Services

on behalf of the Council to request a gateway determination from the NSW

Department of Planning and Environment in respect of the Gateway Planning

Proposal Report prepared by Rebecca Ben-Haim, Eco Logical Australia Pty Ltd

and dated June 2018.

2. That voting on this matter to be recorded on the basis of an automatic division as

required by legislation.”

A Gateway Determination was issued by the Department of Planning and Environment

on 13 August 2018. A copy of the determination together with the covering letter

received from the Department and a copy of the Planning Proposal are provided as

Attachment 1.

In accordance with the determination, the Planning Proposal was placed on public

exhibition. A Public Notice was posted on Council’s website and social media pages on

22 August 2018 and was also advertised in the Cobar Weekly on 22, 29 August 2018 and

5, 12 and 19 September 2018.

Further, the following public authorities were consulted as required by the determination:

• Office of Environment and Heritage;

• Department of Industry – Crown Lands and Water;

• Rural Fire Service; and

• NSW Police.

A copy of the submissions received following the exhibition and consultation period are

provided in Attachment 2.

Comments regarding matters raised in the submissions are included elsewhere in this

report for consideration in conjunction with each submission included in the attachment

and forming part of this report.

Issues

Should the Council determine to progress the Planning Proposal by requesting the

Department to amend the Cobar Local Environmental Plan 2012 such action in itself will

not approve the use of the subject land for the purpose of a camping ground. An

amendment of the Cobar Local Environmental Plan will make a camping ground a

permissible use, it will not authorise, approve or consent to the land being used as a

camping ground. The use of the land as a camping ground will only be possible subject to

the preparation of a Plan of Management as community under the Local Government Act

1993 and obtaining required consent and/or approvals under both the Environmental

Planning and Assessment Act 1979 and the Local Government Act 1993.

Matters raised in the submissions received from the community are summarised below:

• Benefit to Cobar economy and tourism.

• Pleasant area for a campground.

• Attracts people to visit Cobar and Surrounds.

• Direct competition against Cobar Caravan Park.

• Financial impact on rate payers and Council.

• Unsafe for children – large manoeuvring vehicles and potential predators.

• Close to residential area.

• Increase in cost and time of maintaining facilities.

• Heavy traffic volumes around surrounding streets.

• Environmental concerns – grey water discharge, camp fires, litter, noise and

waste.

• Interference with local activities for example Cobar Park Run.

• Traffic management at site and adjoining residential streets.

• Emergency management – evacuation (road access), high volume of traffic in

small area.

• Regulation of campers – length of stay and complying with rules.

The matters raised by government agencies are highlighted below:

The Office of Environment and Heritage reviewed the Planning Proposal document and

advised that it has no specific comments to make.

The Property Management section of the Department of Industry, Lands and Water

reviewed the Planning Proposal document and its comments are summarised below:

• While the Department is not in opposition to the proposal, it must ensure that free

camping is consistent with the Principles of Crown Land management and is in

the public interest.

• Noted required additional actions as being gazettal of additional reserve purpose

and preparation and adoption of a Plan of Management.

• Highlighted a potential adverse economic impact on the Cobar Caravan Park.

• Advice that Council must comply with relevant legislation relating to the

operation of a camping ground, specifically the Local Government (Manufactured

Home Estates, Caravans Parks, Camping Grounds and Moveable Dwellings)

Regulation 2005 and the Local Government Act 1993.

The following comments are relevant in terms of these items:

If the Cobar Local Environmental Plan 2012 is amended such action will not in any way

change or reduce obligations on Council under all relevant Crown Land and local

government legislation.

Further written advice has been obtained from the Department of Industry – Land and

Water that there is no need for the gazettal of an additional reserve purpose on the basis

that under the current reserve of Public Recreation camping is allowed provided the Plan

of Management for the reserve specifies that camping is an allowable activity and the

area(s) available for camping are clearly delineated.

It is important to note that the High Court decision of Kentucky Fried Chicken Pty Ltd V

Gantidis (1979) has established that “the mere threat of competition to existing

businesses, if not accompanied by a prospect of a resultant and overall adverse effect

upon the extent and adequacy of facilities available to the local community if the

development be proceeded with, will not be a relevant town planning consideration.” The

Planning Proposal relates to an additional permitted land use and does not relate to a

specific development proposal.

The Department of Industry, Natural Resources Access Regulator has provide comments

in respect of its review of the Planning Proposal as summarised below:

• Confirmed previous advice in relation to waterfront land under the Water

Management Act 2000 and has highlighted the Guidelines for Controlled

Activities on Waterfront Land.

• Recommended consideration be given to any future additional demands for water.

The comments have been discussed with staff at the Natural Resources Access Regulator

and it has been confirmed that Council is exempt from the need to obtain a controlled

activity approval under the Water Management Act 2000.

No comments were received from NSW Police and Rural Fire Service.

As a separate project to the Planning Proposal, work has been progressing on the

preparation of a draft Plan of Management for the subject reserve under the Local

Government Act 1993 pursuant to Section 3.23 of the Crown Land Management Act

2016. This draft plan is not ready for release to Councillors for comment and approval to

refer to the Minister of Lands. Minister’s consent is required to place the draft plan on

public exhibition. However, the background information gathered to date in respect

environmental, ecological and cultural heritage assessment has not identified any matters

that would prevent parts of the reserve being used for the purpose of a camping ground.

Again, please note that any decision to progress the Planning Proposal cannot authorise

or approve the use of the reserve as a camping ground.

Similarly, the matters identified as part of the exhibition and required consultation in

respect of the Planning Proposal are not considered to be of such significance to prevent

Council from proceeding with the Planning Proposal to amend the Cobar Local

Environmental Plan 2012.

Legal Situation

In preparing this report an inconsistency between two relevant planning instruments

under the Environmental Planning and Assessment Act 1979 was identified. This

inconsistency was created post issuing of the Gateway Determination on 13 August 2018

and is worthy of being noted in this report.

State Environmental Planning Policy (Infrastructure) 2007 was amended effective from

31 August 2018 by referencing the Crown Land Management Act 2016 and related Plans

of Management adopted in accordance with the Local Government Act 1993 in clauses 64

and 65.

The effect of the amendment is that if development is for the purpose of implementing a

plan of management then such development may be carried out without development.

However, it should be noted that an environmental assessment and activity approval

would still be required under Part 5 of the Environmental Planning and Assessment Act

1979. However, under State Environmental Planning Policy No. 21 – Caravan Parks

development for the purpose of a caravan park which by definition includes a camping

ground may only be carried out with the development consent of Council.

A legal opinion was obtained on 19 November 2018 in respect of this inconsistency with

particular reference to section 3.28 of the Environmental Planning and Assessment Act

1979.

For the purpose of preparing this report it is submitted that it is likely that if a camping

ground is to be developed on the reserve the provisions of State Environmental Planning

Policy No. 21 will apply.

Therefore, a position of not proceeding with the Planning Proposal on the basis of solely

relying on State Environmental Planning Policy (Infrastructure) 2007 as the planning

approval pathway for any future camping ground is not supported.

Financial Implications

All external costs associated with the Planning Proposal project have already been

incurred and costs to complete the project will be staff time reporting to the Department

of Planning and Environment.

Options

The recommended option if Council decides to proceed with the Planning Proposal is set

out in the recommendation.

Council may determine to not proceed with the proposal to amend the Cobar Local

Environmental Plan 2012 to make a camping ground an additional permitted use on the

subject reserve.

Given the delayed completion of this report pending receipt of legal advice there is an

option to hold this matter over to the Ordinary Meeting to be held on Thursday, 13

December 2018.

RECOMMENDATION

1) That Council authorises the Director of Planning and Environmental

Services on behalf of the Council to request the NSW Department of

Planning and Environment that a draft Local Environmental Plan be

prepared to amend the Cobar Local Environmental Plan 2012 in accordance

with the Planning Proposal Report prepared by Rebecca Ben-Haim, Eco

Logical Australia Pty Ltd and dated June 2018.

2) That voting on this matter to be recorded on the basis of an automatic

division as required by legislation.

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